Ten more key messages from court judgements in 2018

Here are ten more rulings from the past 12 months that have shed light on the courts' interpretation of a range of planning policy and practice issues.

London's Royal Courts of Justice
London's Royal Courts of Justice

Assessing housing need is not an exact science. In January, the Court of Appeal stressed that responsibility for assessing housing need lies with the decision-maker when it upheld an earlier High Court ruling that an appeal inspector used her planning judgement lawfully in refusing permission for 73 homes in Leicestershire.

Children count as residents of houses in multiple occupation (HMOs). In February, the High Court agreed that premises in west London occupied by six adults and four children, making ten residents in total, exceeded the definition of a small class C4 HMO and upheld an enforcement notice requiring its occupation to cease.

Visual impact is a relevant factor in interpreting green belt openness. In March, the Court of Appeal struck down planning permission for a quarry extension in North Yorkshire, holding that to exclude visual impact from a consideration of the likely effects of development on green belt openness would be artificial and unrealistic.

Supplementary planning guidance (SPG) must be consistent with adopted planning policy. In May, the High Court ruled that the mayor of London’s affordable housing SPG was unlawful to the extent that it went beyond the adopted London Plan in requiring late-stage viability appraisals on schemes failing the mayor’s 35 per cent affordable housing target.

Community benefits packages cannot be used as a reason to grant planning permission. In May, the High Court supported a ministerial decision from 2017 to reject plans for 11 wind turbines in Cornwall, finding that a community benefits fund and a community investment scheme proposed by the developers were not material planning considerations.

Equality considerations must be considered in regeneration schemes. In June, the High Court struck down Bath and North East Somerset’s decision to approve plans to redevelop a housing estate, finding that it had not fully taken into account the needs of elderly and disabled residents sharing a "protected characteristic" under the Equality Act 2010.

Planning policies must be applied an interpreted in a consistent manner. In June, the Court of Appeal upheld an earlier High Court judgment striking down the secretary of state’s decision to approve a housing scheme in East Sussex, finding that his earlier decision to dismiss another scheme against the same settlement boundary policy was clearly a material consideration.

Historic use of a site may count for more than visual impact in conservation areas. In July, the High Court agreed that a Milton Keynes Council planning officer, in recommending approval for redevelopment of a railway works in a conservation area, had been entitled to conclude that preservation of the historic use should be accorded greater weight than retention of unlisted buildings.

Historic planning obligations may still serve a valid public purpose.  In July, the High Court concluded that an obligation imposed in 1998 requiring a developer to contribute towards a road built by a Nottinghamshire council still served a useful purpose, even though an inspector had found that it was not necessary to make a development now proposed acceptable.

Inspectors may be justified in taking a cautious approach in deciding whether a five-year housing land supply can be delivered. In November, the High Court held that an inspector had correctly applied the tilted balance in favour of sustainable development in approving 29 homes in Cheshire, finding that it would have been nonsensical for him to disregard doubts over the deliverability of permitted sites within the relevant five-year period.

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